Marikana Report Reader Notes

Below are annotations, summaries, thoughts and quotes reflecting a sequential reading of the report of the Marikana Commission of enquiry, made over the course of 24 hours spent reading the report after its release. Witty interruptions aside, I feel this is the most detailed summary of the report's contents available at present, outside of actually reading it yourself. Any spelling errors, or areas where I have missed items are likely to be the result of sleep fatigue, and are my fault alone. If you should pick up any errors in spelling or accuracy, please do email me, as I will gladly make corrections to improve on accuracy where needed.

Full transcript of the proceedings runs for 39, 719 pages and documentary evidence classification scheme ran through the alphabet four times (AAAA to ZZZZ), with sub-numbers as well (e.g. ZZZZ-49).
Commission outlines that it is not its job to establish criminal liability (run a series of 'mini criminal trials'). This is the job of the NDPP. Commission will only recommend people should be investigated if a prima facie case appears to exist against them.
Lots pf photographers did not have the time settings on their gear right. So a timeline was agreed relative to 'E-TV time', as they had actually checked the clocks on their cameras beforehand.
Commission is of the view that it would not be acceptable to allow lower standards of proof than required in civil cases when assessing facts.
Recommendations to further prosecution will be based on either a) there being a prima facie case, or b) there being a reasonable prospect that further investigation may uncover one
[NUM's workers'] demands are first forwarded to a dedicated market research section within NUM?s head office, where they are assessed for consistency with the union?s policies and evaluated against industry and market norms and practices. The purpose of this, he said, is to ensure that NUM does not make unreasonable demands of the employers and in turn, that it does not create unreasonable expectations on the part of workers which may backfire on the union and negatively affect the credibility of NUM?s negotiations.
Only after this process (there are earlier steps too) will demands be considered for submission to the employer
Story starts with wage increases after an unprotected strike in a nearby Implats mine, which raised expectations of Lonmin workers. Implats RDOs (Rock Drill Operators, I think this means) saw salaries go from R6,560 to R9,991, which led many at Lonmin mine to see unprotected strike action as a successful strategy.
In first approach to Lonmin management (Mr Michael de Costa), strikers unable to justify how or where the R12,500 figure came from, except for indicating that it was a 'nice figure'
De Costa indicated that the miners should not approach him as a small group, but rather go through structures
Lonmin offered increases in response to this request of: R750 to all unassisted RDOs R500 to all assisted RDOs R250 to RDO assistants This was not accepted, and RDOs decided to embark on a strike in support of R12,500 instead
Chapter 4: Events of Thursday, 9 Aug, 2012
Approx 3,000 miners meet at Wonderkop stadium. Unprotected strike begins in earnest.
Mr Pieter Botha, Lonmin security sup, describes the protest as peaceful.
Lonmin issues internal communique to point out strike is illegal and they will call the SAPS to help dismiss participating workers
Neither AMCU or NUM are at this stage involved. NUM claimed they would not be able to pursue the claim. AMCU had not aligned themselves with the demand.
Chapter 5: Friday 10 Aug, 2012
Crowd assembles, prepares to march to Lonmin offices. Lonmin HR indicates internally that they will refuse to negotiate with them, calls Lt Gen Mbombo (NW Prov Commissioner of Police). Mbombo promises to send support.
Crowd arives at mine with sticks and knobkerries (no other weapons seen). SAPS bring four Nyalas and several soft skin vehicles. SAPS takes over escorting workers
Mr Sinclair and Blou of Lonmin address crowd, tell them to put demands in writing. Crowd says they are illiiterate and cannot do so. S & B return to Lonmin office to report. Crowd disperses.
Lonmin management circulates communique that striking workers will be fired. Mr Sinclair tells this to crowd assembled at Wonderkop fourway crossing later in the day. Crowd disperses back to Wonderkop stadium. Crowd was aggressive and angry.
More meetings, etc. (you will need to read this yourselves, as my fingers will die before I can rewrite the whole timeline)
No weapons other than sticks in the hands of miners on 10 Aug.
(This is at the Wonderkop stadium). Other testimony that strikers who were intimidating miners reporting for duty had pangas as well.
Commission finds that rubber rounds fired by Lonmin security that day were a reasonable response to stop striking miners who were chasing and intimidating other workers.
Two lonmin employees opened an attempted murder docket (CAS 69/08/2012) in respect of two shootings of mine staff by what appeared to be Lonmin security using live ammunition. Commission recommends SAPS investigate these incidents
On 10 Aug, SAPS claimed to have a contingency plan in place to deal with the unrest at Marikana. Plan signed by Lt Col Merafe and Brig Seboloki. Col Merafe testifies plan was prepared for him by Warrant Off. Motlame on 10 Aug after the march that day. Capt Govender, the commander of Marikana Visible Policing, listed as VISPOL Commander in the plan, testified that not only did he not receive a copy, he was unaware it even existed.
SAPS intel report for 10 aug attributes the shooting of the two men to inter-union rivalries between AMCU and NUM. Both of the men who were shot categorically deny this, and state specifically that they had been shot by Lonmin security.
Lonmin internal policy for dealing with unprotected strikes required detailed minutes of all decision meetings, etc to be taken. In practice this was not done. Lonmin denies policy doc was officially binding because missing some signatures. Commission finds it was accepted as policy internally regardless.
there has been little or no evidence from Lonmin of any detailed planning, briefing or debriefing in reltion to the incidents of 10, 11 or 12 august
Chapter 6: Events Occurring on Sat, 11 Aug, 2012
(making coffee, back in a bit)
...and back.
Morning of 11 Aug. Lonmin runs around outside the hostels with loudhailers telling miners to go back to work. Asks NUM to encourage members to go back to work and provide them with transport. Mr Kwadi (NUM?) expresses a fear that this is probably a conflictual role for NUM to be playing.
And indeed it appears to be. Miners head to NUM office to ask why they are against the strike, and to clarify rumours that NUM, driving around in a Toyota Quantum, had been shooting at some strikers the day before.
Reader's note: A Toyota Quantum is a terrible drive by shooting vehicle.
Testimony that the miners who went to the NUM office had sticks and spears. No pangas or firearms seen.
Testimony that NUM officials in said office had collected together a number of sticks and spears. Story was that they had distributed these weapons amongst NUM members in order to defend their office. (Rumour was that the strikers were coming to burn it, and the drive-by-shooting Quantum)
Crowd arrives, absolutely no indication they wanted to talk to NUM/ask questions. Lots of nasty things said.
Most NUM people had fled. Twenty of them staying in the office to defend it.
In the rising confusion, three gunshots. panic and strikers disperse. NUM staff chase them to deny them a chance to regroup.
NUM chasers catch up to strikers, fighting breaks out. Gunshots, and the crowd scatters. Two of the protestors, Mr Ngema andd Mr Mabuyakhulu were shot. Two attempted murder dockets were opened.
Mr Mabuyakhulu states that gunshots came from NUM ranks, but unclear who. He ran until he fell down, weak from gunshot in his back. NUM members set upon him. struck him with the handle of a spear until it broke. Lost consciousness after a blow to the back of his head.
Mr Mabuyakhulu testifies that he can identify his assailants from video footage. SAPS has said footage (they also have the bullet removed from his body). Commission recommends that the DPP follow this up and see if the assailants cannot be prosecuted.
Mr Mabuyakhulu could not explain why, if the intention of going to the NUM offices was to question them, 3,000 people went, rather than a representative delegation.
Commission finds that strikers likely went to the NUM offices to do violent things to it, because NUM was helping Lonmin break the strike, and because of rumours of people being shot at by the NUM Quantum of death the evening before.
Eyewitnesses at the NUM office said only sticks and spears in the crowd that morning. No evidence to contradict this. Mr Cassim who owns a hardware store in Marikana said that he sold out of pangas at 09h00. People did not want them wrapped, just put them in their pants and left.
Commission is unclear about the timing of the panga sell out vs the fracas at the NUM office.
The most credible timeline has panga shopping happening after the shooting. Commission observes (drily) that Mr Cassim could not have been the only supplier of pangas, as the number in possession in the following days were far more than the 30 he had sold.
Reader's note: Mental image of Mr Cassim.
Not disputed that NUM fired on the strikers. Other than this, commission has no further evidence surrounding the circumstances of this shooting.
NUM leader Mr Gegezela testifies he did not know about presence of guns. It was put to him that a group of 20 NUM staff confronting a crowd of 2,000+ miners would have made no sense otherwise. Witness remains adamant.
Commission cannot rule on whether these shootings may have been self defence (the later assault on Mr Mabuyakhulu was definitely not), as NUM refuses to share any evidence on the circumstances surrounding the shooting from their point of view.
Strikers retreat to stadium, solicit the services of a Sangoma. Sangoma wants R1,000 per person, settles for R500 instead. Witness estimates 1800 people at the time. Strikers move to the koppie, rituals are performed and discussions take place as to what will be done tomorrow to avenge the day's shootings.
One witness objects to the commission investigating muti/rituals, saying it is insulting and racially stereotyping to assume all of the strikers believed in/took part in muti proceedings.
Readers note: If R500 pp was actually paid, Sangoma is likely the second richest man emerging from this affair, after Adv. Mpofu.
The NUM shooting is described in the commission report as being between NUM and AMCU, but it is not clear at what point (in the commission's view) AMCU became involved in the process, as they were not a party to the earlier days, according to the commission? Maybe this is clarified later
Note from the Lonmin security team debriefing at the end of the day; "SAPS behaviour not tolerable as they stopped the medics to get names of injured person". General feeling that SAPS is not being very helpful, in Lonmin's view.
Strikers stay on koppie through the night.
Evidence indicates that during the day of 11 aug, strikers began arming themselves. From sticks to knives and steel rods. Testimony suggests this was a response to NUM's attack on them.
Chapter 7: Events of 12 Aug, 2012
Lonmin security testify they were drawn away from Wonderkop hostel by what felt like a decoy group of protestors. Realising the decoy, they make best speed to wonderkop hostel. Stopped by a large group of protestors, blocking their vehicle in a semicircle arc. tense standoff. striker hurls rock at security, security opens fire with shotgun (rubber round? unclear?) and retreats to vehicle. mr Vorster from security cut by panga on right side from armpit to hip.
Clarification, rounds were rubber.
Vehicle stalls
Vehicle starts
Vehicle was badly damaged, but pulls away in time.
Lonmin security return to office, re-arm and try alternate entrance to hostel to rescue Messrs Mabelane and Fundi, who are trapped in the hostel area
A second confrontation occurs here. Commission pieces movements together in part with GPS tracking of Lonmin's vehicles.
After beating a retreat (scene involves security guy jumping into back of a moving bakkie rather than get into his own, as the line is so close there is no time), they realise that Mssrs Mabelane and Fundi did not escape with them. They have been murdered and their shotguns stolen.
SAPS now apparently arrives. Cannot approach the scene to find Mabelane & Fundi, as they are in a small vehicle (one?). More police later arrive
Commission finds no good cause has been given for the deaths of the two (none was even attempted to be made to the commission), and that the protestors involved appear to have acted in common cause.
New event that day - attack on K4 shaft
Three people assaulted and Thapelo Mabebe killed.
Protestors entered the compound after putting blankets over razor wire and climbing over
All kinds of havoc and destruction in the commission notes
Mr Mabebe was chopped in the face by protestors
found this way, but not dead at the time. Was able to talk while witness (Mr van Vuuren) tried to help him. Died later
Another Lonmin worker (Mr Keyter) struck with a pipe, stabbed in the back with a screwdriver or knife while trying to escape
He survived
Commission finds this to have been an unprovoked attack on unarmed persons, and condemns it in the strongest terms
No SAPS were in attendance. SAPS do not dispute this.
Reader's note: It appears that people in Marikana that day would have had more luck calling for Batman.
Chapter 8: Monday 13 August 2012
Reader's note: I like that you are reading this. It makes the endless typing worthwhile
Mr Julius Langa is killed. He was a production team leader at Saffy Shaft. Not affiliated to any union. Had 18 incised wounds on his chest, back and upper limbs. Deepest wound 11cm. Also wounds on face and head, and 14 holes in his back.
Lonmin security officer who attended to the body testifies that none of the bystanders who were nearby came forward with information. Apart from Mr X's testimony (coming later, apparently), nobody has come forward to testify as to his death.
Overwhelming evidence before the commission that Mr Langa was killed by protestors
Strikers' council at the commission basically acknowledges that Mr Langa and nine others were killed because Lonmin refused to talk to the strikers.
Secondary issue then arises as to how culpable Lonmin is in contributing to this state of affairs. Discussed further on in the report.
Mr Xolani Nzuza, 'Mambush' Noki (man inthe green blanket) and 200 or so others go to K3 shaft to see if anyone is working.
Security tell Mr Noki that nobody is working on the shaft, and he accepts this, and takes the group back to the koppie
This is where they bump into the police under major general Mpembe near the railway line.
Reader's note: I think this is the scene from Miners Shot Down
Now we appear to jump to the police timeline
One of the strikers' songs that was sung during the standoff by the railway line is in exhibit QQ2
Standoff between SAPS under Maj Gen Mpembe and the miners under Mr Noki. SAPS wants weapons given up, miners refuse. Mpembe get superiors to agree to let SAPS escort strikers back to the koppie as he did not want a 'Tatane situation'
While they were being sescorted by SAPS, someone fired a teargas canister, which triggered a fight with the SAPS. This someone was Warrant Officer Kuhn, who did so without any orders from Mpembe. Mpembe had been advised beforehand not to trust the SAPS staff under him to follow his orders, and Col Merafe (one of his underlings) appears to have wanted to force disarm the protestors
Capt Thupe says Gen Mpembe gave the teargas order.
Mpembe says he gave no order
Kuhn said he received an order, but has no idea from whom
Capt Thupe insists Mpembe gave the order
Mpembe replies that if he had done so, he would have done so through the radio, so everyone could hear
Capt Thupe shushes.
Mpembe says he did not even see Capt Thupe during 13 Aug
Reader's note: These people are given armoured cars and teargas?!
Helicopter testimony (Col Vermaak) confirms that the grenade caused the miners to charge the police
When helo saw the miners charge, they swooped low and threw ±20 teargas and 10 stun grenades on the protestors.
Capt Thupe fired 8 rounds from his pistol at the strikers, in self defence
Only 3 members of the SAPS fired (live) rounds during this encounter. Thupe 8 rounds from his pistol, Constable Sekgweleya 19 rounds with an R5, and Sgt Mguye 10 rounds with an R5.
Reader's note, R5s come with 10, 35 and 50 round magazines. 50 rounds is a high cap magazine, meaning that 35 round mags were prob most likely in use here.
Thupe continues to insist in testimony that Mpembe gave tear gas order, has difficulties under cross examination.
Commission accepts Gen Mpembe's account.
Strikers fled the engagement with an R5 and a shotgun. Col Vermaak lands help and pursues fleeing protestors. They are fired on by the stolen shotgun and R5 and return fire
Reader's note: This was not in Miners Shot Down, as far as I can remember.
After gunfire, the body of Mr Sokanyile is found in a stream
Evidence relating to Mr Sokanyile's death is confused. Could have been shot by Col Vermaak's group, Capt Thupe's group, or another SAPS group under Constable Yende.
Commission cannot decide who was responsible based on available evidence
Col Vermaak returns to main SAPS group and evacuates Gen Mpembe from very angry SAPS troops
Testimony from Lt Baloyi. In the fracas, he was hit by a panga, fell on the ground and striker started stabbing him in the chest. Striker pointed a firearm at him, but was disturbed by others trying to steal his shotgun. Was stabbed by an assegai. Had nine stab wounds in total, and barely survived
Mr Mati, a striker, was found dead in front of a house in the nearby informal settlement. Not clear how he died from the available evidence
Doctor indicated cause of death was stab wound on right femoral vessel (artery)
Second opinion doctor says this was actually a gunshot wound to this area
Commission unsure who to believe, as first doctor saw body, second one didn't. No determination can be made
Phiyega now makes an appearance in Marikana at 16h00 that day
SAPS create operational plan for 14 august - encircle the koppie and create a weapon confiscation line
Plan was meant to be put in effect early in the morning (when few people on the koppie), btu could not be done, because none of the commanders came to the Joint Ops Center early in the morning. Plan was therefore shelved. Also, not enough SAPS personnel to do it, and no reinforcements on the way.
Chapter 9: Thur, 14 Aug 2012
Police improve on the encirclement plan. It's quite detailed, and you would need to read it yourself (p155-ish), lots of stress on not antagonising the strikers, and on trying negotiation, etc first. A hostage negotiator is brought in, and goes to the koppie to talk to the strike leaders over a loudhailer. This is the scene in Miners Shot Down where Mr Noki is talking to the Nyala.
Strikers demand to talk to Lonmin, police say they want miners to disperse.
17h03 , the body of Mr Isiah Twala is found about 200m away from where the negotiators had been parked. He was a Lonmin supervisor. Strikers let police come investigate, say they know nothing.
This death is dealt with later.
Change scene to Lt Gen Mbombo negotiating with Lonmin that day
Whole thing is recorded. Mbombo was unaware she was being recorded. SAPS did not supply this recording to the commission, though it was in their possession. Recording was belatedly discovered by Lonmin, who then handed it over.
Reader's note: The commission, it is not impressed by this behaviour.
Mbombo wants to talk to lonmin management to understand their decuisionmaking. Lonmin Human Capital Exec VP,Mr Mokwena says "Lonmin's priority is getting people arrested"
Mokwena also says lots of bad things about AMCU being responsible to Mbombo during this meeting. Basically all of which he retracts under oath.
Mbombo says they will encircle the workers and give them the opportunity to surrender arms. If they do not do so tomorrow, it "will be blood".
She concedes to the commission that in saying "there will be blood she was not speaking metaphorically. She meant injury or death."
Reader's note: I don't actually think any of this is amusing, but this commentary keeps me sane.
It appears to be agreed that Lonmin will issue another ultimatum to workers to get back to work, failing which the police will act the following day.
Mr Mokwena testifies that at no stage did Gen Mbombo urge Lonmin to negotiate with the strikers
Gen Mbombo mentions that in a conversation with the min of police, Mr Mthethwa, Mthethwa said that Ramaphosa was calling him and pressurising him. Also says the national commissioner had asked her the previous evening if she knew who the shareholders of Lonmin were,and explained that it included Mr Ramaphosa. Explains that "Ramaphosa was very strong in terms of the decision made".
Also a concern that the police needed to end the strike in order to prevent Malema from being able to get involved and possibly claim credit for making a settlement
Reader's Note: This is page 163/164 if you are a lazy journalist wanting to find the Ramaphosa headline for tomorrow morning.
Both Mokwena and Mbombo contacted by Mr Themba Godi (an opposition MP) harrassing them to get the situation 'arrested' so that 'opportunists' could not make political points off it
Commission finds, inter alia, that Mbombo was "responding to what she perceived as pressure from Mr Cyril Ramaphosa whom she considered politically influential".
atom bomb
Though 'perceived' pressure need not incriminate Ramaphosa, strictly speaking, unless he took actions to exert it (i.e. it was not just a 'misperception'). Unfortunately, if he was actually calling lots, that seems to connect him directly to said pressure?
On we read...
I should add here, that a quick skip to the 'Ramaphosa' chapter does fairly solidly exonerate him from being the cause of the miners deaths. In the sense that he had no clue about the midrand meeting at which Gen Mbobo decided to use the encirclement plan. I have my reservations about whether the judge's ideas on what constitute a 'conflict of interest' are properly applied to Ramaphosa, but it is 4am, and I am quite sure my brain is not firing on all cylinders.
It sounds far more like the peons in the palace of the ANC just made assumptions about what the master(s) wanted, and acted on those, to disastrous effect. Which is a handy way of keeping your hands clean, and your interests serviced.
But I still have another 400 pages, so it'll be a while
Evidence that Mbombo and Phiyega had inappropriate conversations about politics regarding the strike.
Commission finds it telling that Phiyega does not dispute the testimony of Gen. Mbombo.
Commission agrees that: Gen Phiyega was complicit in engaging discussions where political factors were inappropriately considered
Reader's note. I am going to mark the most damning items like this now. atom bomb>
Commission returns to the issue of the body of Mr Twala, found near the koppie. He died from multiple stab wounds.
Testimony suggests that he went to the koppie for a meeting, was detained as an impipi, and executed. One witness says he saw Mr Twala's gun taken, together with a shotgun, and hidden with a blanket.
The song everyone sang afterwards was "How can we kill the NUM members?"
Commission believes that Mr Twala was taken behind the mountain and killed as an impipi by a number of men. There is an active investigation by the police into this, and it should be allowed to take its course.
Chapter 10: Events on Wed, 15 August, 2012
(coffee break)
Coffee made, and on we go
Gen Mbombo's D-Day plan would not be put into effect today, as commanders believed it would be a breach of faith, given that negotiations were still proceeding. Secondly, an SAFM radio programme, ;the Forum at 8' had seen leaders of NUM and AMCU agree to go to Marikana to talk to the strikers
Note: The encirclement strategy, with a single exit where disarming would occur, appears to be what is referred to in the report as the 'tactical option'.
Gen Mpembe (not to be confused with Mbombo) met the two union leaders and encouraged them to go talk to the strikers and encourage them to talk/disarm. He said "We are policing in a democracy where negotiation [is] its weapon, not bloodshed."
Lonmin (Mr Mokwena) refuses to go with the two union leaders. Insisting they will only meet the strikers once they are disarmed, and only through their leaders.
Mr Zokwana (NUM) arrives at the koppie, gets a cold reception. Has to abandon his address
AMCU (Mr Mathunjwa) gets a friendlier reception. Starts speech with "Down with traitors down" though.
AMCU does urge the strikers to go back to work and pursue negotiations. Strikers thank Mathunjwa, and ask him to return in the morning to see how they could [arrange to] go back to work.
Police debrief Mssrs Mathunjwa (AMCU) and Zokwana (NUM). AmCU optimistic that tomorrow will be a 'day of joy', and that all could well be resolved. NUM insists that strikers cannot remain armed, and that a culture of lawlessness cannot be encouraged,
Mpembe rebuts Zokwana, pointing out that to disarm the strikers would be bloodshed, and that is not something he is willing to do.
Mpembe: "I cannot go to the mountain, it is not - has never been strategically in my training. How do I disarm somebody with an axe as I have a firearm. It will never work. There is no training in the whole world to be like that."
Reader's update: Brief clarification of the apparent standing of central characters in the SAPS at this point.
Maj Gen. Mpembe
Lt Gen Mbombo
Report says that despite Gen Mpembe clearly foreseeing bloodshed, it appears that the SAPS leadership (Mbombo) appears to have "reconciled itself to the notion that bloodshed was a real possibility, if not an inevitability"
Scene shift away from Mpembe debriefing AMCU/NUM leadership in Marikana, to Phiyega and Mbombo at a National Management Forum (NMF) meeting in Midrand.
The decision to make tomorrow D Day is made at this meeting, by Lt Gen Mbombo, endorsed by the SAPS leadership at an extraordinary session of the NMF. Present was the national commissioner, all provincial commissioners and the divisional commissioner for Operation Response Services and the Head of Crime Intelligence.
Information available to the Commission regarding this meeting is limited. Two of those in attendance failed to respond
Commission finds that the answers that the remaining attendees supplied were correctly described by Adv Budlender SC as a disgrace.
Budlender: "Chair, if one analyses these statements one is left, to be absolutely blunt, with a feeling of absolute despair. These are the most senior people in the South African Police Service. They?re asked some very important questions by a Commission which is investigating, as Mr Chaskalson put it, the greatest catastrophe since we achieved democracy, and the answers are evasive and they are non-responsive.?
SAPS deliberately attempted to conceal that the decision to go with the 'tactical option' was made at this meeting (when nothing was known of what would happen the next day), rather than in the middle of the day on 16 August as was claimed.
In fact, no mention of the meeting was present in any of the SAPS evidence supplied to the commission.
Reader's note: What a bunch of motherfuckers.
Phiyega has to be dragged back to the commission to discuss the meeting she had concealed during her first testimony. Commission finds her 'singularly unhelpful'
She suggested that there must have been a discussion in which an assurance was sought that the possibility of bloodshed had been adequately considered and that measures were in place to ensure any bloodshed would be kept to a minimum but she herself could not say that was so, and added that she was 'not able to give those pedantic details'?
Reader's note: Swallow coffee before reading, to prevent spitting it onto desk when reading paragraphs like this.
Mbombo testifies that the meeting was under an hour long.
Onsite generals Mpembe, Naidoo and Annandale are briefed by Mbombo as to what is to happen. They denied in testimony that they were so briefed, but the commission rejects these denials as false.
Because they have the telephone records.
Evidence suggests that Lonmin was aware of Gen Mbombo's decision too.
Chapter 11: Thur, 16 August, up to Scene 1
Notes at the morning SAPS joint ops meeting begin with the term 'D-Day'
False minutes of this meeting were initially given to the commission. It took over a year to get the real ones from the police
False minutes appear to have had the purpose of moving the decision to use the tactical option from the night before to later that afternoon, if the situation merited it
It becomes clear that the voluntary disarmament that AMCU was hoping for was not going to happen.
It is clear that Mbombo foresaw that encirclement would result in bloodshed, and that it was a tactic that could/should not be attempted on a group of 2000+ protestors
It was clear that the local commanders (Mpembe et al) also knew there would likely be bloodshed
One of either Brig. Calitz or Col. Merafe ordered 4,000 additional rounds of R5 ammo for delivery to Marikana
Ammo arrived by the afternoon, but was sent back by Brig. Pretorius, because it was not needed
Merafe says Calitz ordered it. Calitz denies this. Commission doesn't find it necessary to resolve this dispute.
Col Madoda and Col Claasens, at the insistance of Brig. Van Zyl, requested four mortuary vehicles at Marikana (capable of removing 16 corpses). In the event, only one hearse was available, and it arrived just after 13h00
SAPS ordered more barbed wire from Lonmin
Lonmin had lots.
Lonmin delivers wire
The people within SAPS who had devised the original encirclement plan were clear that it could not be implemented after 09h00, but they were not listened to.
between 10h34 and 10h44 the Nyalas with barbed wire arrive on the field, and their visible presence (the original plan had insisted they be hidden) riled the strikers. Mr Noki (Mambush) asked that the Nyalas be removed, and that he would not ask again.
One of the Nyalas is moved, because strikers were congregating near it. This would have a fatal effect on the overall encirclement pattern later (referred to in the report as Nyala 6)
Two SAPS video operators, Warr. Off. Masinya and Warr. Off. Ndlovu were told to return from the field to the joint ops center for their own safety, as the strikers might attack them as spies. Why they were made to return to the JOC, and not simply move further back in the field has never been satisfactorily explained to the commission. The commission notes that the lack of police video evidence of what happened has significantly hampered its work.
This despite a national directive four weeks earlier stressing that video should be recorded throughout police operations, including during the use of force.
Joint Ops finishes their planning meeting at 13h30. On the checklist is ensuring that video operators are present. Gen Annandale said they assumed the video operators would be briefed to go and cover the police action.
They were apparently not.
National commissioner (Phiyega) said that she found the excuse given for the withdrawal of the video operators acceptable.
Commission finds this a violation of the earlier national directive on police video operators, and the excuse plainly not acceptable.
The original reason given by the SAPS for the joint ops meeting was to decide whether or not to start the tactical phase.
Except that the "whether to do it" decision was taken in Midrand the night before
As the original encirclement plan would no longer work (too many people on the koppie now?), a modified one was presented instead. No planning documents for this version of the plan, save for a google earth map, appear to have been shown to the commission
All of the SAPS staff with public order policing (POP) background were in the field. (i.e. not at this meeting)
Meeting attendees were briefed on the new plan in 30 minutes, and commanders had 20 minutes to brief their subordinates. No handouts were provided.
This results in much confusion in the field later. Wire is rolled out consecutively, rather than simultaneously, and the commander of one of the response teams described the briefing as inadequate
While this is happening, Bishop Seoka of the SA council of churches met with the strikers and took their concerns to Lonmin. Lonmin management reply that they will not meet with the strikers as they are 'criminals and murderers in that they had killed their people and security personnel'.
Just before the bishop can return to the strikers, Mr Mokwena (Lonmin) tells the Bishop that he cannot return to the koppie, as it has been cordoned off.
Reader's note: At this point, the only people who appear to be unaware that the strikers are to be cordoned off is the strikers.
Commission moves to discuss scene 1
Discussion of the order in which the Nyalas unrolled their wire. Mambush appeared to be leading a group of strikers off of the koppie after the AMCU representative had returned and made one last appeal to them.
SAPS argues that strikers made two attempts to 'enter the neutral zone' (i.e. escape the barb wire cordon as it was being sequentially laid), but were repelled back inside the cordon using tear gas and rubber rounds.
Commission rejects this version of events, as basically a complete fabrication
The commission accepts, however, that strikers did assault one Nyala (Papa 11). Brig Calitz asw that efforts to repel attacks on the Nyalas tyres were not working (stun grenades, rubebr balls), so ordered other Nyalas to drive amongst the strikers to try and break them up.
Testimony that the man in the green blanket (presumably Mr Noki) and three others approached Nyala 1 prior to Papa 11 being attacked, and told him that the Nyalas must leave, or the police are going to die.
Lots and lots and lots of SAPS officers in the Nyalas give testimony about strikers attacking the Nyalas and not being deterred by gas or rubber rounds.
Lt Ramagogodi testifies to seeing a striker firing with a pistol
It's hard to work out what is actually happening overall. Lots of SAPS shooting teargas and rubber rounds at strikers, and strikers assaulting Nyalas. This doesn't appear to be during the famous news footage, but rather before it.
Commission turns to the question of the intention of the strikers
The Nyala cordon leaves two holes, referred to as passage A and passage B. Passage B, however, has POP officers with rubber rounds, backstopped by a line of TRT officers (which I take to mean tactical response team - the people with R5s who kill things). TRT group was briefed that they were only there in case the POP line was overrun, in which case, they would be given an order to fire.
The final positioning of the Nyalas, after rolling out the wire, was that they formed a crescent shape which left open passages A and B, but also acted as a channel, channeling the strikers into passage B (with the TRT team)
Council for the families argue that this amounts to a 'trap' by the SAPS. And that even if they did not have specific intent to kill the strikers, they acted with at least Dolus Eventualis.
If you brush off your Oscar Pistorius, that means realising that what you are doing might reasonably result in death, but doing it anyway.
The SAPS are unable to provide an explanation for why that Nyala formation was settled on. The commission "accepts that the obvious inference is that this was done to achieve that effect"
The response from the SAPS appears to be that they thought the 'aggressive' appearance of the TRT teams would be sufficient to make the strikers acquiesce.
The commission believes that the SAPS action was intentionally designed to channel the miners into passage B (with the TRT team), as there were a number of alternative configurations reasonably available to them, which were not used.
At about 15:53:40, one of the strikers fired a shot towards some of the POP officers, as the strikers approached their line.
At 15:53:52, over 100 strikers approach passage A (no TRT team) and water, teargas and stun grenades are fired on them
These methods were applied imprecisely, *behind* the strikers, rather than in front of them. Which had the effect of herding them towards the TRT line
The measures also cause a split in the group, with about 40 strikers, including Mr Noki, breaking off and heading towards the TRT -staffed gap.
The remainder of the group is halted form making it down passage A. The report says that if the non-lethal measures had been correctly applied they would in all likelihood not have led to the POP line being overrun, and the TRT officers opening fire.
And on that cliffhanger, I am going to get some sleep. Night all. (This is page 232 of 600-something)
...And we are back again, dear reader. (goes to make coffee)
A major point of contention between the SAPS and other parties was the matter of the intentions of the strikers who approached the kraal (the TRT line area)
SAPS says they were intending to attack police, so as to remain in possession of the koppie and their weapons
Other side's case was that miners were withdrawing from the koppie
Evidence on this matter from direct witnesses on either side has been of v poor quality.
I.e. commission thinks they were lying and unreliable
Commission instead considers additional evidence
Mr Noki approached Nyala 1 and had asked the police to sign a piece of paper, saying: "we are going to kill each other today"
Additional testimony that strikers made a number of comments to the effect of 'one of us is going to die', and 'we will not leave the koppie without being paid the R12,500 or dying'
Commission emphasises that the question of intention of the group cannot be answered in an undifferentiated fashion
Commission finds no convincing evidence of an intention to attack the SAPS by the group that moved off the koppie
Commission points to the case of mr Ntsenyeho, a striker whose speeches to Gen MPembe at the railway standoff previously had been essentially conciliatory
In the footage at scene 1, Mr Ntsenyeho appears unarmed,
He was shot through the neck and thigh by R5 rounds. His body was identifiable by his yellow string backpack.
By contrast, Mr Noki and 'Kaiser' both made speeches at the koppie at 1:00 (13h00?) which, if not dismissed as bravado, suggested either an intention to attack police, or to violently resist them.
The striker who shot at police earlier, showed an intention/willingness to attack SAPS. Either as an objective, or as a step in support of another objective
Members of the TRT might reasonably have believed themselves or their colleagues were about to come under attack
Even if you discount the SAPS claims of incidents 1 & 2 beforehand, there were clearly clashes just before, in which strikers had attacked police (the Nyalas beng overrun)
SAPS argument to the commission is that TRT members are not liable for the shooting, as 1) they had reasonable ground to believe they were in danger of death/injury, or 2) They acted in self defence because they reasonably believed they were in such danger even if they were not.
Evidence leaders therefore argue that the intentions of the miners were irrelevant. What is, is whether the TRT acted within the bounds of self defence, and reasonably believed themselves threatened
Commission agrees that TRT members had reasonable grounds for believing they were under attack.
Victims team lays out nine arguments in favour of the TRT team being aware of the situation, and deliberatly placing themselves in an attack position. Commission rejects all of the arguments.
Correctly in my view. This is page 253
328 rounds were fired in 8 - 12 seconds
After the first three seconds, no conceivable threat existed from the miners.
Distance from TRT to strikers was 18m. Rounds during the first 4 seconds included warning shots into the ground, which produced a dust cloud. That TRT members continued shooting into the dust at the miners afterwards, without being able to see specific targets, was reckless and unjustified.
After 9s, Capt Loest raised his fist and shouted 'cease fire', but some members continued firing
It would not have helped a striker to have indicated surrender, or trying to fall to the ground, as the low fire would have killed them.
Neither dropping a weapon, nor turning around would have helped. Both were tried unsuccessfully by strikers,
A number of shooters may have exceeded the bounds of reasonable self defence, given the sheer number of wounds to chests and heads. Even accepting that some of these wounds came from low fire after miners fell to the ground, there are too many to be explained away without also accepting that some TRT members were shooting to kill, at torso/head level
This links back to a large preface at the beginning of the report where they run over all of the legal precedent on self defence, pointing out that it should be proportional (e.g. shoot the legs if possible, use minimum force, etc)
There is also Reuters video evidence of shooting at head height
Several TRT members at scene 1 admitted in statements that their rifles were on automatic fire.
The stamped sheet metal selector lever on the R5 starts at "S" - Safe - then goes to"A" for Automatic, and finally "R" - Repetition - for semi-automatic mode. Automatic is in the middle because it is easier to flick all the way to R [Repeat], meaning that Automatic has to be specifically chosen.
Lt Col Classen confirms this was grossly negligent. Mr Cees de Rover, policing expert called by the SAPS said that in his view, auto fire has no place in law enforcement. Need to prove existence of imminent threat with every pull of the trigger.
R5 rounds disintegrate when inside a person. This made it impossible to connect rifles to individual wounds. There is prima facie evidence that some of the shooters may well have been guilty of attempted murder. Cannot charge any shooter with murder, as it cannot be shown which shooters actually killed anyone.
This is what an R5 looks like, btw:
Commission talks about how the dead were arranged. Some bodies have injuries from shotgun pellets. this is unusual, as TRT had only assault weapons/pistols.
Gen Naidoo submits that the shotgun pellets were friendly fire from the strikers using stolen Lonmin shotguns.
Commission does not find this suggestion acceptable.
Pellets were clearly fired from the victims' left, where SAPS vehicles were parked. No Lonmin security onsite (alternative theory was that Lonmin Security had shotguns and used birdshot for crowd dispersal)
Mssrs Ledingoane and Mtshazi were killed in a position around 45m from the closest point of the TRT line. Mr Ledingoane by a single R5 shot through the spine, Mr Mtshazi by a single R5 round through the neck. Another, Mr Ngongophele (nearby) was killed by a richocheting R5 bullet that hit him close to his right eye.. Mr Gwelane (unemployed, not a striker), was found on th epath to Nkanend, more than 250m away from the TRT line, but within the funnel of fire.
These four could not have plausibly presented a threat to TRT safety, and their deaths were likely the reult of being in the sfunnel of the TRT volley
Commission agrees with evidence leaders that Mr Gwelani's case provides "the clearest illustration (if any are needed) of why the use of military assault rifles should be banned in public order situations."
Mpembe and others agree that the operation should have been halted after the shootings at scene 1
However, none of the SAPS commanders with the authority to end the operation appeared to be aware that scene 1 had happened.
Commission finds numerous items of evidence to indicate clearly that the SAPS commanders (Mbombo, Mpembe, Annandale, Calitz) must have all known before the scene 2 shootings that the scene 1 shootings had taken place.
At 16:03:34, Brig Pretorius SMSes IPID: "Having operation at Wonderkop. Bad. Bodies. Please prepare your members, as it is going to be bad."
Mbombo SMSes Phiyega at 16:02:19. Mbombo claims she cannot remember what the SMS was about, and was outside Joint Ops when the gunfire came in over the radio. and nobody told her at the time what had been heard.
Commission rejects this account, believes she was quite aware of what had happened, or would have been told basically right after everyone else in Joint Ops knew.
Lots of paragraphs of SAPS' officers found lying to the commission in claiming they had no clue there had been a live ammo firefight. Transcript of orders from Brig Calitz saying "No lethal firearms now unless the target engage you..." was incorrectly transcribed and sent to the commission as "no need for firearms..."
Commission moves to consider scene 2
Brig. Caliz procedes torwards koppie 3 to supervise the arrest of miners fleeing that direction. At the same time, Col Modiba approaches koppie 3 from northeast,TRT under capt Kidd approaches koppie 3 from the south west and Maj Gen Naidoo approaches Koppie 3 from the south. These units were converging on koppie 3 without informing Brig. Calitz or the JOC
Fourteen bodies were found at scene 2. Ten were killed in what is described as a crevice where they appear to have sought refuge.
Commission heard evidence as to the deaths of two of these individuals, Mr Mpumza and Mr Mkhonjwa. No evidence was adduced as to the circumstances in which the others were killed.
SAPS opening statement states that they would have difficulty justifying all of the deaths that took place at scene 2
Brig Calitz had 20 years in POP policing, and so took it upon himself to take officers forward towards the koppie
They arrest around 29 miners west of the koppie
Approaching the koppie, he encounters TRT members, who he says should not be there (Cpt Kidd's group). Tells Kidd to find out what is happening with his group and report to J ops immediately
Arrives at koppie after the shootings have taken place.
He encounters Gen Naidoo and the dog unit at the koppie. Is surprised to find them there, as they should be sweeping the main koppie. Sees weapons on the ground, people arrested, etc, and cautions people to protect the crime scene, as it is large and likely very complex
Lt Col Vermaak is int he air over the koppie when Calitz arrives - he appears to be responsible for coordinating water cannons/armoured vehicles. Testifies that Brig Calitz gave orders for 'live fire, live fire' at the koppie. Brig Calitz denies this, or that he was aware of any shootings at the koppie.
Vermaak is in a helo, Calitz is on the ground, I believe. Some of the description here is confusing.
Capt Kidd testifies that his TRT team was charged with holding a line between the koppie and a nearby informal settlement, to prevent it being attacked.
Kidd's group is on the way to deployment when they hear gunfire and chaos on the comms. Cannot get through to Brig. Calitz, the JOC, or Lt Col Vermaak (in the helo).
Kidd consults with Cpt Ryland, and they make a decision to move towards the koppie to support other members with whatever had jsut happened.
Both Kidd and Ryland had cell phones, but did not think to try contact the JOC or Brig Calitz. Said he did not have their numbers anyway, but could certainly have tried to call his commanding officer to let them know the change in movement
He assumed that Vermaak (helo) would be able to see their movement, and would be aware of their position.
Kidd's group encounters miners, on the way to the koppie. Miners lay down their weapons and were allowed to pass. Process was entirely peaceful.
Instruction from Vermaak to move left causes Kidd's group to break up into three parts,. Units are from Pretoria, Johannesburg and Honeydew, and Kidd concedes that from this point, he lost practical control of his force.
Pre-deployment briefing was so inadequate, that Kidd believed his TRT force was approaching koppie 1, instead of koppie 3. had only been shown a photo of the area that made it look like there was one koppie beforehand
Kidd testifies there was gunfire and rounds over their heads. Firing came from the koppie, and they saw strikers inside hissing, banging weapons and refusing to put their weapons on the ground.
Two strikers were shouting something he did not understand and charged towards TRT members lying near a small rck
One of the two is shot and falls, the other runs back. No R5s were fired at this point, and the shooting appears to have come from the POP group near Kidd's force.
The surviving striker ran back out at Kidd's men, was shot, and fell to the ground.
Reader's note: This sounds like a pretty irrational account, unless you were playing a first person shooter
Cross examination of Capt Kidd raises the possibility that this small arms fire over the TRT team's head might have come from other police
Testimony now from another officer, Col Modiba. Discharge list from SAPS shows that 115 rounds of live ammunition were fired at scene 2, of which 103 were R5 rounds.
Reader's note: There is a distinct lack of any SAPS people testifying to have shot anyone themselves.
At this point, police testimony seems to be that some of the miners had firearms, and had shot at police. Then it feels like the different units approaching koppie 3 received incoming fire that may possibly have been friendly fire from police units firing in the opposite direction, leading everyone to think there was a firefight going on, drawing weapons, and approaching
Commission focuses on the killing of Mr Mpumza
Constable Sebatjane testifying. He was a TRT member under Capt Kidd, on the northernmost of the three groups formed after Capt Kidd's group split.
Lots of focus on the TRT group, as they had R5s, and most of the ammo fired was from those rifles.
Mr Mpumza runs toward Capt Kidd. He is instructed (shouted at) to drop his weapon, and he kneels down, as if to put them on the ground. Const. Sebatjane approaches Mr Mpumza. When he is three feet away, Mr Mpumza stands up and attacks him with a weapon in his left hand. He misses Const. Sebatjane's neck by about three inches. Sebatjane draws firearm, jumps back three or four paces, and opens fire. He fired nine round in a period in which Mr Mpumza tried to stab him about four or five times.
Another TRT member (Const. Mabe) had also discharged his R5 in defence of Sebatjane.
Post mortem finds most of Mr Mpumza's entrance wounds are consistent with the use of a high velocity weapon (the R5). No indication of any entrance wounds by a 9mm pistol.
Oops. Sebatjane is either the world's worst shot, or is lying about the close range, action movie scene.
Clarification: the NYPD studies police gunfire situations under SOP 9. In 1992, the average hit potential for a NYPD policeman was only 17 percent. At distances between 3 and 7 yards this was only 11 percent. There is a disconnect between range marksmanship and combat hitmanship. If you look at the statistical data, it is not unthinkable for a policeman in a combat situation (I believe the member was being charged by an armed striker) to fire eight rounds in unfamiliar circumstances (panic, stress, instinctive shooting, possibly from an unstable position or even moving) and not score a single hit.
Mabe testifies to having fired four rounds at Mr Mpumza's legs. A bullet and two bullet fragments were indeed retrieved from Mpumza's lower limbs. Not clear then who fired the other R5 rounds. Commission finds that this merits further investigation.
Capt Ryland captured this incident on video on his cell phone and confirms that there was an attack on Const Sebatjane.
Reader's note. Four feet is a little less than the length of a desk. I am amazed that Sebatjane appears not to have hit Mr Mpumza once in nine rounds at that distance.
Commission turns to the case of the death of Mr Makhonjwa
This was the gentleman who was killed in Capt Kidd's testimony above, after running towards the TRT line.
There is no evidence to identify who shot him.
Post mortem shows a single distant gunshot wound entering his left arm, killing him. because the range was distant, though it cannot be determined *how* distant, the commission believes this death merits further investigation, as it is not clear that this was a killing in self defence.
Commission turns to assessing Command and Control
Gen Mpembe testifying now
Mpembe was in a helo over the area, and saw that something had gone wrong. Tried to commnicate with Calitz and Vermaak, but there was too much radio traffic. Had to return to the JOC
He also failed to consider using his cell phone.
Mpembe says the command of the operation rested with the operational commander on the ground once the op started, as they were in position on the ground. He could not interfere with the operational commander's decisions.
It is clear from the evidence that the overall commander, Maj Gen Mpembe had absolutely no command and control of scene 2
351 The commission agrees that the miners at scene two were not given an opportunity to surender before the police set about trying to disperse them (including through the use of force)
352 Commission also agrees with criticism that Brig Calitz failed to use teargas to force the strikers out of hiding at scene 2, which presented far less risks to both sides
353 The commission finds Brig Calitz assertion that he was unaware of the shooting at scene 2 to be as implausible as his claim that he was unaware of shooting at scene 1
354 The Evidence Leaders criticised Major General Naidoo for having participated in a chaotic free for all which cost sixteen people their lives without exercising any command and control and without taking any steps to stop the shooting and isolate the problems. We agree with these criticisms."
Captain Kidd's explanation was that he was unable to command those members under him once the orders were received from Lieutenant Colonel Vermaak and Sergeant Venter in the helicopter to move left and his group split in three different directions. In view of his concession that when the groups split up, he could have designated commanders to be in charge of each of the groups and to stay in touch with each other by cell phone but did not do so, his explanation is unacceptable
Commission turns to look at ballistic evidence
SAPS claim that their members came under fire from the koppie
Three firearms were recovered from the strikers. One had a full magazine and appeared unfired. One had six rounds and an empty cartridge in a seven round magazine. The last had two rounds in an eight round magazine
There is a possibility that other firearms may have been hidden on the koppie and not recovered, or were snuck away by strikers.
Just under a third of the cases for the 295 rounds fired by the SAPS were recovered. No cartridges for any shots fired by strikers or anybody else were found. If any shots were fired by miners, they would have been a tiny minority
Apart from what is described above, there is no other evidence about the deaths on koppie 3.
A reconstruction of police positions was done by a Mr De Rover, but the commission is not privy to the workings of the reconstruction and has not been shown any documents or method notes regarding it, so cannot assess the merits of its conclusions.
Commission notes that many of the ballistics reports referred to come from the SAPS
Ballistic analysis suggests that Gen Naidoo and his unit are the most likely candidates for eight of the other deaths.
Apart from the evidence of a reconstruction of the scene by Mr De Rover, the South African Police Service provided no details of what happened with regard to the deaths of most of the deceased at Scene 2. Where it does provide evidence pertaining to the deaths of some of the deceased, their versions do not, in the Commission?s view, bear scrutiny when weighed up against the objective evidence.p316
Commission finds that as the most senior officer at the scene Maj Gen Naidoo did nothing to stop the firing of 295 rounds at the koppie strikers.
Absolutely nobody appears to corroborate Maj Gen Naidoo's version of events. Seven SAPS members in a Papa 11 (Nyala) testify to seeing Maj Gen Naidoo and other officers emerging from the boulders where the firing came from.
Readers' Note: Unclear whether Naidoo's non-TRT unit carries R5s? So were the eight people 'likely' killed by Naidoo's unit shot with 9mm rounds?
Clarification: All policemen are supposed to be certified on the Vektor Z88 pistol, the Vektor R5 and the Beretta shotgun, in order to use any of those should circumstances require it. It is entirely possible that R5s were issued to these members.
Maj Gen Naidoo's version of the story changed after a cartridge case linked to his firearm was found on top of the rocks at koppie 3 (scene 2).
Naidoo was resistant to giving up his firearm for ballistic analysis
Commission believes that Naidoo's actions warrant referral to the DPP.
Commission discusses medical attention
Or lack of it. No medical attention was provided at scene 1 for about an hour.
Paramedics under Maj Gen Naidoo were diverted to scene 2 because he believed there were injured persons there who needed them.
Yes, the same Naidoo of DPP-must-investigate-his suspicious-story fame above.
Coffee break
And returned.
Commission criticises Naidoo not only for not attending to scene 1, but for not telling the JOC he would not be attending scene 1
Emergency services were stationed at the JOC nearby, and Brig. Pretorius said he had arranged for other medical assistance to be sent to the scene. It is unclear to the commission why they were then unable to attend timeously
In view of the fact that it was foreseen that four hearses were required and four thousand extra rounds of ammunition was ordered, the question arises as to whether in the planning of the operation arrangements were made for sufficient medical personnel to attend.P321, para 7
Evidence before the commission indicates that timeous medical assistance would have saved the lives of some of the deceased,
Naidoo stopped a bunch of times on the way to scene 1. Wasting time and not prioritising taking medical personnel to the site
Commission recommends forwarding the case of Maj Gen Naidoo and his failure to bring medical attention to the DPP
Commission turns to consider investigations at crime scene 2
Scene was massively contaminated. Police and vehicles driving all over it. Cartridges were recovered by many teams, over many days, some as late as 1 october 2012 during an in loco inspection
Warr Officer Breedt removed weapons from the persons and vicinity of the injured. He was then asked to replace them by someone he could not identify byut thought was from the local criminal record center. He put the guns back, but may have done so incorrectly (he admits), as he had no record of where they were before.
Commission points out that this placing-guns-around-bodies behaviour had happened on 13 aug with Mr Sokanyile (the body found in the stream after the fight between police and Mr Noki's group at the railway)
Because of SAPS failure to preserve the crime scene, video evidence cannot be used to ascertain whether miners had weapons, and, by implication, the SAPS' case for self defence
Commission asks why no photos were taken before removing weapons from the scene. Even by camera phones
Reader's note: I anticipate the commission recommending that the police learn to use cellphones as a general rule.
Commission turns to examining the Independent Police Investigative Directorate (IPID)
They lacked personnel and experts, and relied on the SAPS ballistics and crime scene experts
SAPS has not been giving full or detailed statements to IPID about what happened, and IPID has a "great deal of investigation which is still outstanding"
Referral recommendations
The lack of clarity on how 17 people died at scene 2 makes it difficult for the commission to make findings.
A detailed reconstruction of the scene needs to be done, involving ballistics, medical, etc specialists.
Commission refers the circumstances surrounding the injuries and deaths at scene 2 to the DPP for North West Province. The DPP must direct and coordinate a specific investigation into the events at scene 2
It is recommended that for the purposes of the investigation, a team is appointed, headed by a Senior State Advocate, together with independent experts in the reconstruction of crime scenes, expert ballistic and forensic pathologist practitioners and Senior Investigators from IPID, and any such further experts as may be necessary. The investigators from IPID are required to specifically explain section 24(5) to the members of the South African Police Services when obtaining statements. The Commission recommends a full investigation, under the direction of the Director of Public Prosecutions, with a view to ascertaining criminal liability on the part of all members of SAPS who were involved in the events at Scene 2."
Chapter 13: the plan, its defects and execution
Commission consults three experts on policing: Mssrs Eddie Hendrickse For Legal Res. Centre, Gary White (SAHRC) and Cees De Rover (SAPS)
The CVs of these men are impressive. will not retype.
Multi-page description of Lt Col Scott's plan for the deployment of wire and dispersion of the miners. Starts at p331
Experts criticise the plan
Nyalas can apparently not roll out the wire simultaneously, only consecutively (it is not explained why). This would give strikers the chance to get in front of the barbed wire cordon. POPs commanders would have known this, Lt Col Scott did not. No POPs commanders were present at the 13h30 Joint Opps meeting where this was discussed
Also, Brig Calitz said it was no biggie, crowds don't usually try to break out of barbed wire barriers while they are being rolled out.
There was also a complete lack of any intermediate measures between the POPs' teargas/rubber/water cannons and the sixty TRT officers' R5 rifles.
Also a failure to designate individual shooters within the TRT line
Mr White was particularly critical, and rightly so, of what the evidence leaders call „the absence of any measures between the POPs members [using less than lethal force] and a TRT line of sixty members … operating as a firing squad?. He referred to the fact that there was, as he put it, „no challenge process? when Lt Col Scott laid out his plan. The plan was for the TRT members to engage the crowd if the POP members moved out of the way for their own protection. It was said that they would do this 'proportionately'.
White: "I kept looking for someone to say, so what does this mean? Let?s put it into plain English. If they only have R5 rifles – so what we?re talking about is shoot people. That seems to be what?s going to happen … if it?s not an inevitability, a high likelihood that there are going to be very high levels of force used in this. …What is the position we?re putting these police officers in? What do we think they?re going to do? I see that as the challenge process, which didn?t happen, and to be honest with you, I was actually shocked in terms of reading the evidence.?
The commission agrees with Mr White
Dear Reader: I agree with the commission.
It becomes clear that the encirclement plan, though risky (see above) was then replaced by the badly-explained-off-Google-Earth plan with a 30min briefing at 13h30 that day
The decision not to implement it was clearly dictated solely by the earlier decision that Thursday, 16 August, was to be D-Day. That decision, for which Lt Gen Mbombo and those present at the extraordinary session of the NMF on 15 August 2012 must accept responsibility, was the decisive cause of the 34 deaths on 16 August.
atom bomb
Gens Mpembe and Annandale warned Gen Mbombo that her insistence on a D-Day plan was going to get people hurt. Had more POP commanders been present at the 13h30 meeting, and the criticisms above been raised, Mbombo told the commission she would have postponed the plan for the next day.
SAPS contend they didn't need a written plan, as they are used to 'disarm, disperse, arrest' operations. Google earth and 30min was fine.
SAHRC demolishes this argument
Mr White demolishes the debris.
The national commissioner testifies that she thought the plan was a good one, and that the mess was a result of the 'disruption' of the plan
Reader Note: What the actual fuck.
She considers the strikers deciding to move while they were being encircled to have been the disruption in question
White: "There is an old adage in planning for operations that “if the people on the front line don?t know what the strategy is, then there is no strategy”. That adage is reflected in the SAPS document “Crowd management for Platoon Commanders - Briefing and Debriefing” which notes: “A good briefing is as important as a good plan, because if there is no clarity and common understanding during the briefing, the operation is doomed to failure”."
SAHRC Counsel: "The problematic nature of the briefing by Lt Col Scott, where he briefed from the back of a van, with 20 commanders crowded around a small laptop screen, and spoke to a single Google Earth plan. The commanders were provided with no written material to take away with them and did not take any notes."
The rough outline of the plan, basically:
More examples of misunderstood or absent briefings are enumerated. p347
The operators of the one water cannon, W/Os Dicks and Kruger did not attend the briefing in advance of the operation and were not provided with a radio. This explains why the JHB water cannon was so delayed in deploying prior to the events at Scene 1 and why W/Os Dicks and Kruger were surprised to find barbed wire preventing them from driving straight to the Koppie.
Lt Col Vermaak was never briefed on the operation prior to his deployment as the “eye in the sky”. Consequently, when the operation commenced, he believed he was still implementing a plan to encircle the strikers in the Koppie
Three different officers testify to thinking the barbed wire was being deployed for wholly different reasons.
Capt Kidd was unsure of the role the water cannons would play in the operation because he did not pay attention to that part of the briefing. Consequently, at Scene 2, as the water cannons sought to drive the strikers towards the west of Koppie 3, Capt Kidd?s TRT members blocked what Mr. de Rover described as “the intended pathway out of the Koppie?
Commission agrees with withering criticism of SAPS reflected in heads of argument on policing issues, including: Contingency planning Adequacy of standing order 262 Recording radio transmissions Use of R5s Radio and other Equipment Intelligence First Aid Designated shooter assignments Militarization Reluctance to admit error Starts on p 348
Mr De Rover stated that with an operation of this kind you do not plan half of it and hope that half will suffice, and that if you need more than that you are going to go back and envisage what other eventualities could occur.
Mr De Rover stated that with an operation of this kind you do not plan half of it and hope that half will suffice, and that if you need more than that you are going to go back and envisage what other eventualities could occur.
Commission does not blame Lt Col Scott. He was placed in an impossible position. Maj Gen Annandale insisted that a log be made in the Occurrence Book that this decision was made by Lt Gen Mbombo and that he was well aware of the dangers of his course of action.
Standing Order 262 (how to deal with crowds, essentially) makes no provisions for what to do when a crowd is armed, and should be revised to address such gatherings and demonstrations explicitly
SAPS did not keep a record of radio exchanges
De Rover advised the National Commissioner to withdraw R5s form all crowd control operations
Eighteen months later, the commissioner had not done so, and was 'still considering' it
Commission finds that this is simply not good enough.
Regarding Mr White's testimony: "Automatic rifle fire does not have a place in law enforcement. He said that people had admitted to him that they had fired inadvertently on automatic, and that a burst went off that might well account for five or six rounds on one pull of the trigger. That was an “utter reality” that one must contend with, whether it is the result of ineptitude or stress."
On radio - only a single channel was available, most of it taken up by Brig Calitz and Col Vermaak
Commission agrees with the view that radio traffic, R5s, etc, are all the result of poor planning, poor briefing and poor decisionmaking.
Police intelligence showed a likely hostile reaction from the strikers to police pressure
Phiyega refused to answer the question of whether police are expected to assist injured people with first aid, when it was asked by the commission
Gen Naidoo provided more clarity on the matter to the commission. He said he did not know the answer.
He said however that the police member would potentially be conflicted, on the one hand carrying arms and possible using force, and at the same time having to render assistance to a person who was injured. We submit that there should be no such conflict."
Training records of TRT officers on the scene showed only two had first aid training for gunshots.
There were 60 TRT officers.
Commission endorses the recommendation that firearms officers be trained to provide first aid for gunshot wounds
The Provincial Commissioner, Lt Gen Mbombo, joined the police force in 1980. After training she performed crime prevention duties in Umtata from 1980 – 1981. That is the full extent of her operational experience. Thereafter, as she moved through the ranks, she held positions in administrative and financial management... She has had no experience of ever commanding any Public Order Policing, whether as a unit commander, operational commander or overall commander. She has in fact never worked in Public Order Policing at all except for once when she was young, when she was a constable in Umtata.
This, you recall, is the Mbombo who drove the plan despite being aware of likely bloodshed, attended the evening meeting at which it was decided, etc
Reader's note: I could totally be a provincial police commissioner.
It should be self-evident that the Provincial Commissioner did not have the training, the skills or the experience to enable her to make decisions as to what should be done in the complex and difficult situation at Marikana. She was simply unqualified to do so.
atom bomb
Despite this, she made two critical decisions with regard to the operation. First, on 15 August, she made the decision that the “tactical option” would be implemented the next day, if the strikers did not lay down their arms and leave the koppie that morning. That decision was inexplicable, and no real attempt has been made to explain or justify it. It was frankly reckless.
Second, at 13h30 on 16 August, she made the decision that it was now time to move to phase 3 (the tactical phase). This too was a reckless decision. She had been informed of the risks of the operation, but nevertheless proceeded, at a time when there was no reason to do so. It is not surprising that Maj Gen Annandale required that it be recorded in the Occurrence Book that the decision had been hers.
The National Commissioner was, if anything, in an even worse position. She had been appointed to head the SAPS just a few months earlier, after receiving professional training in social work and having had a professional career focused largely on human resources and on the management of state enterprises. She had no policing expertise and experience whatsoever.
atom bomb
The consequence of this situation is that the two senior officers in the decision-making line were entirely unqualified to make any decisions at all bearing on police operational matters.
...Maj Gen Mpembe was himself not a trained public order policeman.
Commission endorses that: "Where large and special operations (e.g., the Marikana protests) are high public interest/significance and/or present significant risks to safety and security, it is essential that clear policy guidance be given to the Police Service for the conduct of its operations. This policy guidance should identify strategic objectives and formulate desired and acceptable outcomes of any such operations. That policy guidance should be provided in a timely manner and should be appropriately and securely recorded, preferably through real time audio and visual recording. Subject to security and other operational requirements it should also be made public. The latter two requirements will serve to minimise the risk of political or other interference in public order management. Equally it will serve to manage public expectations with regard to police capabilities and anticipated police responses.?
A discussion of police militarisation starts. Testimony that the police force has been militarising in recent years. In case you missed the memo.
Definitional stuff on militarization. One of the consequences being that the police force thinks in terms of 'enemies'.
Reader's Note: Which might explain the intransigence about giving first aid to people you have shot
After 1994, huge effort was expended to civilianise the police force, but since 2000, the police have gradually started resembling a paramilitary force
Commission quotes work from R Balco: "The most obvious problem with the militarisation of civilian policing is that the military and the police force have two distinctly different tasks. The military?s job is to seek out, overpower, and destroy an enemy. When those soldiers attempt to avoid them, collateral casualties are accepted as inevitable. Police, on the other hand, are charged with 'keeping the peace', or „to protect and serve?. Their job is to protect the rights of the individuals who live in the communities they serve, not to annihilate the enemy.?
Police activity at scene 2 resembled a paramilitary operation, more than a policing one
Pointed out that the NDP and National Planning Commission had made demilitarisation recommendations to the SAPS already. Phiyega asked if she agreed with them. After much evasion, she replies: "So I understand and I think it's a journey that we will all try and travel"
Extract: The senior evidence leader and then the chair both tried to get an answer from her as to whether she agreed that the demilitarisation was “a short term objective which should happen in the immediate term”. There efforts met with little success. The closest she came to answering this question was to say:“I may not be having the end times but this work in progress is pumping and it?s very active.”
Reader's Note: Go and make a motivational poster. Do it now. “I may not be having the end times but this work in progress is pumping and it?s very active.”
Commission finds that it has to be said that the remilitarisation of the police force has been accompanied by a repoliticisation of it.
Commission believes depoliticisation and demilitarisation of the SAPS is an urgent priority, and must start at the very top.
Reader's note: Progress must pump from the top.
De Rover testifying on SAPS structure some more: "There has also been a clear departure, in recent years, from the paramilitary style of police organisation, which is characterised by military ranks and hierarchical, centralised decision-making. On all three matters South Africa has taken a rather different approach: senior police appointments are highly politicised, non-experts are appointed; and the organisation is paramilitary in structure and functioning."
Mr White testifies that there did not appear to be any serious attempt by the SAPS to identify mistakes and improve. No debriefings, nada.
SAPS had a 9 day conference in Potchefstroom (called 'Roots'), but this was aimed at preparing a presentation for the commission, and not looking at lessons learned.
SAPS was combative/defensive from the get go.
Commission submits "that all of these criticisms are fully justified"
SAPS said they had De Rover producing a 'Lessons Learned' report for them
De Rover indicated he had never been requested to produce such a report.
Near the end of the commission, SAPS produces exhibit YYYY - a 'lessons learned report'. It was based in part from listening to Mr White's insights at the commission in the previous months.
It does not address overall lack of accountability of the SAPS, poor decisionmaking and poor recording of the operation, problems with the SAPS' operational mindset, reckless or absent planning, inadequate briefing, errors of strategy, tactics or proportionality at scenes 1 & 2 or absence of timely first aid.
Reader note: It is unclear what exactly it *did* address.
probably pumping and end times
Mr De Rover indicates he found a real unwillingness to learn lessons in the SAPS, for fear that they would then be held responsible.
Commission believes reluctance to admit mistakes likely fuelled in part my Phiyega telling police on 17 Aug that what they did represented "the best of responsible policing", encouraging a closing of ranks.
IPID's investigation, in De Rover's view, further exacerbated this, by bombing officers with papers asking for statements and warning them of all kinds of legal repercussions. The most rational thing to do in such a case is to stay silent
Chapter 14: The SAPS Parade on Aug 17, 2012
*Interlude while I seek a food*
And we're back. With a supermarket wine and skittles for the last stretch. #thestruggleisreal
Commission says that Phiyega's speech to SAPS officers on 17 Aug is "singularly inappropriate" as it had the effect of closing ranks
The minister of police then addressed officers afterwards, and her comments served the same effect - though he did not go as far as heaping praise on the police, as Phiyega had done.
In the commission's view, it was "a serious error of judgement on their part to go as far as they did in giving what would have been understood to be an unqualified endorsement of the police action".
The commission cannot find that the minister and national commissioner discussed this approach (of getting the SAPS to close ranks), it found these remarks ill-advised, and says they may have had the result of hampering the commission in its work.
Chapter 15: The report submitted to the president and the media statement by The national commissioner on 17 August
When the shootings took place, the president was at a SADC meeting with the minister of international relations. Minister asked Phiyega to have a report prepared, so that the President could decide whether to return to SA.
Report was compiled late on 16 August, sent to the minister early on the 17th.
The report to the president and minister makes it clear that two separate incidents occurred. The statement given to the media on the morning of 17 august did not disclose this, and created the impression that there had been only one shooting incident.
In which the police were shooting in self defence against "a storming group of miners who fired shots and wielded dangerous weapons".
The changes, the commission finds, were "clearly not accidental"
Phiyega could not explain the apparent duplicity. She added, however, that she was "the owner and reader of the statement"
Commission agrees that the most reasonable conclusion is that the report to the president and minister was "deliberately amended when it was reformulated into a media statement in order to obscure the fact that there had been two shooting incidents"
Chapter 16: Brig Calitz' briefing to SAPS members at a parade on 18 August
Brig Calitz addressed a parade of SAPS members on 18 August before operations commenced. This was recorded, although the SAPS did not initially disclose the videotape and it was not on the hard drive of evidence provided to the commission, despite the fact that videos in the sequence before and after it were on the hard drive.
Dear Reader: This is a polite way of saying that the police hid this recording.
Brig Calitz instructed officials present to take a camera away from a member of the media present, because he really, really did not want to be recorded
His speech (page 398) essentially contains lots of exhortations that the police did nothing wrong, and that everyone should understand that.
The commission finds that contrary to Brig. Calitz' speech, the operation "was not a success, but a disaster of monumental proportions"
His comments, like those of the minister and the national commissioner, had the effect of closing the SAPS ranks over the issue.
Chapter 17: The roots conference
The SAPS held a conference on Potchefstroom from 27 Aug - 8 September as a debriefing and perparation for the judicial commission of enquiry.
It is clear from the evidence before the commission that the conference was not a debriefing, but rather a preparation for the commission.
SAHRC submits that the Roots conference was used by the SAPS as an opportunity to collude, and points out that no attempt was made to record and minute the meetings at Roots, nor were independent parties or senior officials from IPID invited to ensure transparency.
The commission is in agreement with these criticisms, including that SAPS appears to have used the Roots conference to doctor minutes, remove video material from their submission and generally work on getting their story straight for the commission.
Chapter 18: Review panel header by Brig. Mkhwanazi
Brigadier Mkhwanazi testified before the commission, for the SAPS, and specifically said during under cross examination that no review process had taken place, and no document existed to indicate the results of any such review, had it taken place without his knowledge
Evidence was tendered that such work sessions had indeed takenplace between 29 August and 20 Sept 2012, some three months before Brig. Mkhwanazi's testifying before the commission
Col Scott and Brig. Calitz testified to meetings having indeed taken place. Calitz said he was asked detailed questions about the events of the day and his decisionmaking. He was under the impression a report would be made.
Phiyega denied any knowledge of these work days.
Mbombo said that she attended the first day, and was told by the members present that the National Commissioner had asked them to check whether the operation had been in accordance with policies.
A document headed 'Final Interim Report' was handed to the commission as the result of these work days, and it contains no detailed analysis of anything, and is completely unhelpful to the commission
It is not clear to the commission why these meetings were not disclosed. The commission requested the notes made by the members of the panel at the meetings, but none were ever produced.
Chapter 19: Mr Cyril Ramaphosa
During Aug, he was a non-executive director of Lonmin, appointed in July 2010.
From 11 - 15 August 2012, Ramaphosa exchanged emails regarding the events at Lonmin with Minister of Police, Nathi Mthethwa and Minister of Mineral Resources, Ms Susan Shabangu
Argument is presented that Ramaphosa was putting pressure on the govt and police not to call the strike a strike or labour related, but to call it 'criminal action' in order to make it easier to inflict violence on the strikers.
Counsel for the injured miners also try to argue that Ramaphosa's intervention is causally connected to the police operation and killing of the miners.
In argument at the end of the hearings counsel for the Injured and Arrested Persons submitted that Mr Ramaphosa's intervention „triggered a series of events which determined the timing of the massacre. He knew exactly what he was doing and he is the cause of the Marikana massacre, as we know it
Ramaphosa first learns of the problems on 11 Aug. Chief Commercial Officer of Lonmin sends Ramaphosa an email explaining that a "terrible and distressing situation had developed and that "probably only a massive police and possibly army presence will stop us having a repeat of recent past experiences or nearby". He urges Ramaphosa to "please use your influence to bring this over to the necessary officials who have the resources at their disposal."
Ramaphosa then phones Mthehwa to ask him to please do something about it. But did not suggest any specific steps to the minister. Minister said he would look into it.
This account is confirmed in Mthethwa's testimony
At 21h09 that evening, Mr Mokwena (Lonmin) sends Ramaphosa a press release form Lonmin about the working staff who were killed by attacks from the strikers (Mssrs Mabelane and Fundi). Ramaphosa replies to Mokwena early the next morning that he has had anotehr conversation with Mthethwa, stressing that they should immediately take steps to ensure that they protect life and property and bring those responsible to justice
The minister had only replied that he was working on it.
Mthethwa testifies that on one of the two occasions they spoke, Ramaphosa had said that "he did not think that what was happening was 'pure industrial action in the true sense of the word: It had criminality on it and violence'"
The minister says that Gen Mbombo sympathised with this view: "...because industrial action as you would understand it is that the Constitution and the Gatherings Act allow people to picket, to march, to demonstrate and do all sorts of things unarmed. Now, if there?s an action, a protest action or industrial action, and lives of people are lost that?s criminal so I understood where they [Mr Ramaphosa] and Mr Zokwana, [who also spoke to the Minister on 12 August] were coming from"
Two more people die. Ramaphosa has another discussion with Shabangu, summarised in an email to the chairman of Lonmin, Mr Phillimore as: „Discussion with Minister Susan Shabangu – I called her and told her that her silence and inaction about what is happening at Lonmin was bad for her and the Government. She said that she was going to issue a statement. She was going to be in Cape Town to attend a Joint Parliamentary Session and would be back in Johannesburg later today to attend to the Lonmin matter. I told her that I would also be in Cape Town and suggested that we should have a discussion and see what she needs to do.?
Albert Jamieson (Lonmin CCO) sends Ramaphosa another email, essentially concerned that the minister is treating this like a labour strike, when Lonmin would prefer it be understood as criminality and responded to as such.
Ramaphosa replies agreeing and that government officials need to understand that Lonmin is "essentially dealing with a criminal act"
Ramaphosa meets with the minister. Minister says she agrees that it is in fact a criminal act, and will correct her characterisation of it.
Ramaphosa signs off his email to various Lonmin senior staff with "Let us keep the pressure on them to act correctly"
Cross examiner tries to get out of Ramaphosa what it was he was hoping the police to do (presumably fishing for some version of 'kill them all'). This is not forthcoming. Ramaphosa replies: "No, I did not have anything further in mind except that the police need to do their job and as I understand it their job is to have a presence where acts of criminality are taking place, to prevent further acts of criminality and to arrest those who they know have perpetrated such acts so that they do not carry on perpetrating those acts. That is the sum total of what I expect the police to do."
Ramaphosa also asked whether Lonmin negotiating might not have defused the situation. Ramaphosa agrees, but counters that the overriding priority was to stop the killing, and that this was not an either/or proposition: "if that track had been pursued it could have borne some fruit, but what was of prime importance then was that we were dealing with a situation that was highly volatile where people were getting killed, and for good or bad reason we felt that we needed to stabilise the situation first, that we should prevent further people from being killed and in my view that does not exclude the fact that once the situation is stabilised, or as you stabilise it you will be able to talk to people and negotiate."
Minister confirms that she spoke to Ramaphosa, but denied saying that she would "correct her characterisation" or "act in a pointed way" regarding the strikers
Commission finds it not in dispute that Ramaphosa said to the minister that the events were criminal, and beyond a labour strike
Commission finds that this was not an unreasonable position to hold (that the events - i.e. killings and violence - were criminal, not the strike as a whole). And that it was not unreasonable for Ramaphosa to tell the Minister this.
Commission also finds that Ramaphosa, and Lonmin management more generally, "did not respond adequately to the very conflictual situation which had arisen"
Commission also finds that"that it cannot be fairly suggested that the call for 'concomitant action' to be taken in respect of murders and violence, involves the exercise of inappropriate political influence, or an attempt to have the police brought in to break the strike."
Regarding allegations of a conflict of interest, the commission finds that this was not the case: "The interests of Lonmin, the African National Congress, and the interests of those with whom he had personal relationships, were not incompatible: they all had an interest in putting an end to the killings which had taken place. The only people who had an interest in a continuation of the killings were those who were carrying them out."
It is worth noting here that the commission's interpretation was that Ramaphosa was using influence to have the criminal elements of the strike arrested, rather than the strike itself. Though in practice, the SAPS responded by crushing the whole strike. The degree to which this could have been foreseen would in turn inform whether you think Lonmin/Ramaphosa were using the government/police as a weapon to beat down a strike.
Commission agrees that Ramaphosa had no knowledge of the meeting the night before the massacre, at which the decision was taken to have a 'D-Day' at Marikana regardless of what happened the next day. Also agrees that Mbombo et al perceived pressure to be seen to act because Ramaphosa was involved/talking to the minister. But, the commission believes Ramaphosa could not have known of this influence, and that a counterfactual scenario where events were spinning out of control in Marikana and Ramaphosa hadn't called the Minister would not have been likely to materially affect the way the SAPS failed to deal with the situation. I.e. they would have been under pressure regardless of Ramaphosa, with the same lack of ability to make a non-homicidal plan.
it therefore cannot be said that Ramaphosa was the 'cause' of the massacre.
Commission can find no reason to doubt Ramaphosa's testimony. It is entirely consistent with his correspondence.
Evidence that Ramaphosa was in correspondence with NUM as well, to see what they could do 'as a union' to resolve things if necessary
Commission finds no prima facie basis to sustain allegations against Ramaphosa. Accusations made against him by counsel for the strikers are groundless.
Commission turns to the role of MInister Nathi Mthehwa
Counsel for the strikers submits that the NDPP should prosecute the Minister for the murder of the miners.
Commission discusses what the role of the Minister actually is. Decides that the minister is only normally responsible for policy, but *can* issue directives to the national commissioner.
Commission thinks it would not be inappropriate for the Minister to direct the national commissioner to respond to specific events, but would be improper to tell him *how* to do so.
The Minister denied that Ramaphosa had prevailed on him to act in 'a pointed way' towards the strikers.
When questioned on what role the Minister played in her decisions, national Commissioner Phiyega produced no satisfactory answer. Her best response appears to have been: "… he is our political leader. He took, gave us politic(al) support. He gave us that leadership because I do not have the responsibility of communicating in that space or dealing with issues in that regard, and that is the best answer I can give you.?
Madlanga SC cross examines her: "So must I take your best answer to be that you cannot be specific on the political direction nor can you be specific on the support the Minister gave you??
Phiyega replies: "I have said he has given us leadership, he has given us political support, and that enabled us to do our work.?
Commission agrees that "that these answers were not only unhelpful, they were distinctly evasive. "
The decision the night before the massacre to use force remains, in the view of the commission, inexplicable
Commission sees four possible reasons for it:
1) the desire to pre-empt intervention by Mr Malema to defuse the situation (a motive suggested by Lieutenant General Mbombo in her conversation with Lonmin management on the previous day);
2) the rising costs of the operation (a factor mentioned by Lieutenant General Mbombo when she saw Mr Mathunjwa before he went to the koppie for the first time on 16 August)
3) to break the strike (as Lieutenant General Mbombo said in her media conference at 09h30 on 16 August and in her interview with eNCA shortly after)
4) pressure or guidance from the executive
Or some combination of these.
De Rover (one of the three policing specialists) said that he found the idea that the police acted alone in creating this strategy incredible. That given the political and economic importance of the Marikana strike, it was inconceivable that there was not political direction from somewhere as to what kinds of strategies to pursue
He said that he put this problem to the SAPS officers who were instructing him. He had lengthy discussions on the topic with Major General Mpembe and Major General Annandale, who told him that they shared his view. They were, however, not privy as „eye-witnesses or witnesses of fact? to any information that helps in this regard. All that they said was that they shared his view."
He said that he also put this view to the National Commissioner, who gave him "a diplomatic answer?. When the Chairperson asked whether by "diplomatic? he meant evasive, his reply was: "Ja".
Despite apparently recorded, the tape of the extraordinary meeting of the night before the massacre was 'lost' by the SAPS. Despite the commission's best efforts, it was not produced.
atom bomb
Brigadier Malahlela was last known to have had the memory stick with the recordings of the meeting on it, but said that she had lost it. "As the stick contained top-secret information it would appear prima facie that Brigadier Malahlela is guilty of contravening section 4(1)(b)(dd) of the Protection of Information Act 1982 for neglecting or failing to take proper care of the memory stick. As far as the Commission has been able to ascertain, no disciplinary or criminal proceedings have been instituted against her arising from the loss of the memory stick."
The Commission is satisfied that those who attended the extraordinary session of the NMF should have been able to tell the Commission the reason or the reasons why the decision to implement the tactical option on 16 August if the strikers did not lay down their arms was taken and the only reasonable inference to be drawn from their failure to do so is that they are hiding something.
atom bomb
Commission says that while it is unable to find evidence that Minister Mthethwa interfered in the police decision at the meeting of the night before the massacre, it is unable, in light of the SAPS so apparently hiding things, to find positively in his favour
Commission looks at Minister Shabangu
Counsel for the strikers argues Shabangu should be found guilty of corruption and perjury
Commission doesn't believe that Ramaphosa influenced the minister into changing her ideas on whether the strike was criminal, but that in any event, the events that had occurred illustrated that it manifestly *was* so.
Given that, in the commission's view, her testimony (where it clashes with Ramaphosa's) appears to be nothing more than faulty memory, it cannot find against her on allegations of perjury either
Commission also rejects that she should be referred to the ethics committee of parliament.
Chapter 20: Lonmin's inadequate protection of employees
Reader Note: this wine I am drinking is horrible
In 2011, Lonmin changed its security policy from hard force/violence to using soft-skin/unarmoured vehicles and a more low-key, friendly approach to manage unrest.
Wtf is up with your company's working environment that you are even having these discussions? Woolworths doesn't need shotguns to police its staff?
Lonmin security condedes in testimony that they lacked the resources to defend the company against a full scale strike
Lonmin security man (Mr Blou) stressed that their job was to protect mine assets and employees. Events offsite were strictly for the SAPS to handle
Mr Blou testifies that security did not anticipate the levels of violence that ultimately occurred at the NUM office attack and the killing of Mr Fundi and Mr Mabelane on the 12th
Lonmin did not adequately coney to employees that violence had escalated, and that it was not safe for them to come to work
In an e-mail dated 12 August 2012, Mr Jamieson, in documenting the violence, attacks and disruptions that were taking place, remarked that the situation can neither be described as stable nor under control.
Mr Sinclair (Lonmin) agreed that there was a deliberate campaign from Lonmin encouraging its workers to go to work in circumstances where there were specific threats made in relation to employees at Saffy, K4 and other shafts. He said this was in spite of Lonmin?s being unable to protect all of the workers and all the routes that employees would travel.
Many more paragraphs on Lonmin failing to respond appropriately to attacks, or alert staff to the fact that killings had taken place.
The witnesses from Lonmin security conceded that their management of the situation, in the light of the circumstances prevailing, left much to be desired. Mr Sinclair agreed that Lonmin was partially to blame for the deaths of their employees.
The evidence leaders correctly, in the Commission?s view, submitted that Lonmin did not use the intelligence available, did not properly formulate plans for dealing with the strikers, did not ensure that there were adequate security resources at its disposal and did not properly brief members
The Commission agrees with their submissions that Lonmin had a duty to ensure that it had adequate security arrangements in place at Saffy, K4, and other shafts to protect workers. Their failure to insist on and ensure heightened security arrangements in view of the intelligence information available to them at the time is inexcusable.
In the Commission's view, this duty is not confided to the shafts, but extends across the board to all their employees. Lonmin?s reckless actions in urging employees to come to work in circumstances where they were aware of the potential dangers to them and in the full knowledge that they could not protect them, falls to be condemned in the strongest terms. Lonmin must, in the Commission?s view, bear a measure of responsibility for the injuries and deaths of it?s employees and those of its sub-contractors.
Chapter 21: Lonmin's interaction with SAPS
Lonmin was unable to alert the SAPS to the pending attack o the NUM offices, as it was unaware that this was planned.
Lonmin was unable to alert the SAPS to the pending attack o the NUM offices, as it was unaware that this was planned.
Commission finds that earlier deployment of visible policing units might have been able to arrest the violence in the early stages of the strike.
Chapter 22: Could NUM have prevented the strike?
NUM was in a position to approach Lonmin to reopen wage negotiations. Though wage increases had been locked for two years, there was a clause allowing renegotiation with both parties' consent, but NUM did not attempt this.
NUM testifies that the RDOs had explicitly wanted to reach an agreement by themselves, outside of NUM influence, and did not wish to see either NUM or AMCU involved.
NUM admitted that they fell short in telling the RDOs that they could not ask for R12,500 because of the two year wage agreement (when in fact they could)
Under cross examination, NUM representative Mr Gcilitshana says that it would be for the NUM General Secretary to raise wage negotiations with 'captains of industry', rather than for them to raise the issue at Lonmin specifically This was not done either.
Counsel for AMCU put to Mr Gcilitshana that generally when bonuses or allowances may need to be increased or altered, a task team is set up to look at these matters and NUM would be represented on such a task team.811 He agreed with this proposition. She then put to him that at the very least what should have happened before Lonmin offered an allowance to the rock drill operators was that a task team should have been set up on which NUM would have been represented in order to consider and decide upon the matter. He said that he did believe that Lonmin should have called the stake holders who were involved in the agreement and put the proposal forward for the intended allowance. He said that none of this had been done in this case and Lonmin had simply acted unilaterally.
Commission is unable, in the end, to make a finding as to whether Lonmin negotating with the workers over the R12,500 would have appeased the workers and prevented the strike (as Lonmin was likely to refuse to pay this amount).
Very much like Lonmin, NUM encouraged employees to report to work with the full knowledge of the intimidation and violence that prevailed during that period.
...Their actions, were, in the circumstances, reckless and ill considered.
Commission considers AMCU and Mr Mathunjwa's role in the tragedy
Mr Mathunjwa testifies to urging nonviolence, and not creating ill feeling towards NUM as a 'sinister' force against the miners, but this story does not hold up well in cross examination.
Commission does find that AMCU tried to get the miners to leave the mountain before the police operation began, but that the assembled miners would not listen to him.
Chapter 23: Capita Selecta (Selected Topics)
Counsel for the strikers and families argue that police and lonmin had a toxic, inappropriate collision. Including: - SAPS using Lonmin surveillance equipment - Lonmin 'transferring its concerns' to the police, and egging them on to act and intercept the strikers when it was unnecessary and inopportune to do so - Participating in devising the police plan| - Use of Lonmin helicopter by the SAPS - Lonmin personnel Sinclair and Botes pairing up with SAPS to hunt down breakaway strikers on 13 August - Botes permanently posted at the police JOC, with an alternate when he went home - Sharing of radios and information - Synchronisation and planning between the two entities - The collapsing of the Lonmin JOC into the SAPS JOC
Counsel conceded that the collusion may have been acceptable or neutral on face value? but he submitted 'the toxicity thereof stems from the fact that it was intended to and did result in the massacre/ tragedy.'"
The commission does not agree
In order to perform many of the required functions in ending the violence of the strike, the SAPS required to be on and make use of various bits of Lonmin property, and it would have been absurd for Lonmin to deny them this access. To wit: "It would have been absurd for Lonmin to have declined the use of those of its facilities which SAPS required. It would have been unreasonable for Lonmin to have said to SAPS: „(1) you cannot use our JOC, where there are closed circuit television facilities which will enable you to see what is going on at various parts of our extensive premises; (2) our telephone lines, radios and other equipment and resources, and (3) the helicopter we hire from Protea Coin because that would mean we will be accused of colluding with you to assist you to perform your functions as a police service."
The commission basically shoots down all of these charges. read from page 508
Counsel for the Injured and Arrested Persons contended that 3 events during the period from 11 August 2012 onwards were what he called "game changers?, which had a decisive influence on what followed. These were the NUM office attack, the fighting by the railyard, and the impact of political pressure on the SAPS
The Commission does not agree with the analysis of what happened at Marikana over the relevant period. .... The evidence indicates that contrary to their counsel?s submission, they were not unarmed with some carrying traditional sticks. According to the evidence of Mr Gegeleza, which the Commission accepts, he saw knobkieries, pangas and spears in the possession of the approaching strikers. He also testified that far from marching to the NUM offices in order to enquire why NUM had prevented the employer from talking directly to the strikers (as the strikers allege) the strikers who numbered between 2 000 and 3 000, were singing songs and moving fast, running and their mood was aggressive.
The commission is of the view that the first 'game changer' was the decision by the strikers to use violence to enforce the strike.
...there can be no escape from the conclusion that if the strikers had not decided to resort to violence, no-one would have been injured and no property would have been damaged.
SAPS lied when they said there was no prior decision to implement a tactical option on the 16th (they had in fact decided this the night before)
In scrapping the well-prepared (if imperfect, see Mr White's criticisms) plan in favour of Google Maps in the back of a truck and heavy weapons, the police substantially made things worse.
The implementation of the plan had catastrophic consequences which resounded all over the world.
The leadership of the police, on the highest level, appears to have taken the decision not to give the true version of how it came about that the „tactical option? was implemented on the afternoon of 16 August and to conceal the fact that the plan to be implemented was hastily put together without POP inputs or evaluation.
atom bomb
National commissioner and provincial commissioner (Phiyega and Mbombo), the commission finds, should be investigated as to their fitness for office in terms of section 9 of the SAPS Act. It should also be investigated whether they are guilty of misconduct for misleading the commission.
Surprisingly, this is tame compare to all the earlier SAPS roastings in the report
Commission Recommendations regarding the shooters at Scene 1
...where a person or body has sole access to relevant information and does not disclose it, an adverse inference could be drawn against such person or body. This is particularly so in the case of the SAPS because the National Commissioner gave an undertaking when the Commission was appointed that the SAPS would give its full co-operation to the Commission.
Which they totes did not do
The commission agrees with De Rover's assessment of the testimony and affidavits of the TRT shooters at scene 1: "They all sing much of a tune and they don?t offer you much of a clue. And where they do offer a clue I?d actually want detail, the same detail that you want. So they?re a frustrating bunch of statements in that sense and that is a given."
No statement gives enough detail to indicate why each shot by each shooter was justified.
The Commission has found that those members who fired at scene 1 had reason to believe that they were facing an imminent attack. There are indications that some may well have exceeded the bounds of self or private defence, in which event there is at least a prima facie case that they are guilty of attempted murder (for the reasons given earlier in this report no rifle can be linked with any specific death so there can be no question of there being a prima facie case against any of the shooters on a charge of murder.)
Commission suggests referring the entire case to the DPP of the North West province to make determinations as to whether a prima facie case exists against any of the shooters. Many likely acted within the bounds of self defence, and it will be for the DPP to sort out these individuals.
Compensation Recommendations
Several parties have argued that the state should pay loss without liabilities.
This proposal has much to commend it from the point of view of bringing closure to a shocking chapter in our history since the advent of the democratic era in 1994 and achieving the goals of truth, restoration and justice for which the Commission was established.
The situation is complicated by the fact that many, if not all, of the breadwinners of the deceased have instituted legal proceedings against all sorts of people for compensation (Lonmin, SAPS, etc)]
he dependants of dead SAPS officers "may have claims against the Commissioner under the Compensation for Occupational Injuries and Diseases Act 130 of 1993."
The Commission is not satisfied that its terms of reference are wide enough to cover the question as to whether a compensation scheme of the kind proposed should be implemented by the State.
Next section: The applicability of the McCann Principle
Even before it was drafted Major Generals Mpembe and Annandale warned the Provincial Commissioner that proceeding to the tactical option that day would involve bloodshed. She reconciled herself to the fact that this was so, merely asking for an assurance that it would be kept to the minimum. In the Commission?s view this was not good enough
The McCann principle, which requires the planners of policing operations where force may possibly be used to plan and command the operations in such a way as to minimise the risk that lethal force will be used has accordingly been breached.
Put simply: a decision to implement a plan to use more force on Thursday than would probably be required on Friday will, in the absence of compelling circumstances requiring action on Thursday, be an illegal decision.
Chapter 24: Lonmin's Housing Obligations in terms of the Social and Labour Plan
Commission recalls that its remit includes assessing "whether [Lonmin] by act or omission, created an environment which was conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct"
It was also added to investigate what similar role the dept of mineral resources and/or government may have similarly played, but this scope was deleted by an amendment to the commission's terms of reference published on 5 May 2014.
But whyyyy?!
Lonmin disputes that its housing obligations are covered by these terms of reference
The Commission is satisfied that an examination of the topic presently under discussion on this basis cannot be regarded as unfair to Lonmin and that it is obliged in order to carry out its mandate under the Terms of Reference to conduct the enquiry on this topic.
It is common cause that in order for it to have its old order rights in respect of the Marikana mine converted into a mining right under the MPRDA its Social and Labour Plan („SLP?) had to be approved by the Department of Mineral Resources under sections 23(1)(e) and 25(2)(f) and (h) of the MPRDA.
they committed themselves to phasing out all existing single sex hostel accommodation, converting most existing hostels into bachelor or family units and building an additional 5500 houses for their migrant employees.
The commission finds that they built 3 (THREE) of the 5,500 houses that should have been built.
The living conditions in Nkaneng and the other informal settlements int he area are appalling
Mr Seedat (Lonmin) also conceded in cross-examination that there was a critical shortage of decent housing for the employees of Lonmin and that the board and executive of Lonmin understood that the tragic events at Marikana were linked to that shortage."
atom bomb
in the Lonmin PLC annual report for 2012, which was delivered with the address, it was recognised that Lonmin would not easily build a relationship of trust with its employees as long as they were forced to live in squalid conditions on its doorstep
Mr Seedat conceded that Lonmin had known about the critical housing shortage at Marikana and the squalid conditions in Nkaneng for years.
atom bomb
Mr Seedat contended that the obligation assumed by Lonmin under the SLP (their mining license agreement) was not an obligation to build houses but merely an obligation to broker an interaction between their employees and private financial institutions in terms of which employees would be able to obtain mortgage bonds to build their own houses.
The commission rejects this view.
Lonmin makes a bunch of poor excuses, but basically has no good reason for its failure to build the housing it is obliged to
Lonmin blames the credit crisis
Commission says no. That is a terrible, terrible excuse. Plus you should have built 3.200 houses before the credit crisis even rolled around.
Lonmin says land was not proclaimed/allocated for the housing
Commission says no. Shows them where the land has been proclaimed.
Lonmin says they could not afford to build the houses.
Commission points to $607M in dividends and R1.3Bn in 'marketing commission' through which Lonmin has been evacuating wealth.
Counsel for Lonmin also argued that Lonmin?s admitted failure to comply with the housing obligations under the SLP would not have made a difference because the failure to build 5500 houses would have had no effect on the tragedy. Advancing what he called a „counterfactual? he said: 860„Remember we employ 28 000 employees … of the 28 000 we?ve employed we?ve now built houses for five and a half thousand. What about the other 20 and a half thousand [sic, the correct figure is 22 500]? Is that going to take away their complaints? Is that going to create trust between the employer and the employees? I wouldn?t have thought so?.
Chaskalson steps up to deliver a beatdown
This is worth quoting in full:
"… quite a breathtaking argument for Lonmin to make. It amounts to an argument that Lonmin has been so neglectful of the housing needs of its workforce that the 5500 houses in their SLP would have been no more than a drop in the ocean of squalor in which they expect their workers to live. That's what the argument is.Well, Lonmin may have been bad, but it wasn't that bad. The figures that Mr Burger quoted to you are actually incorrect for two reasons; first is they conflate the total workforce with the number of migrant workers in categories 4 to 9, which is the real inquiry, migrant workers, and second they ignore the houses that were already available for Lonmin?s category 4 to 9 migrant workers either through hostel conversion process or through housing developments undertaken by Lonmin prior to 2000. Now we've prepared a table which … shows the correct figures on the basis of Lonmin's own documents with the sources, and there we see that the total number of category 4 to 9 employees was 23044, not 28000 quoted by Mr Burger, that the total number of these workers who were in decent housing by 2012 was 5883, which is 25%, 1 in 4. The total number not in decent housing by 2012 was 17161, 74.4%,three quarters. We then look at what would have happened if Lonmin had delivered. It would have created another 1130 on outstanding hostel conversions and another 5497 houses, that?s the 5500 minus the three that they managed to build. That would have changed the situation, so instead of 25% of the workers in decent housing and 74% not in decent housing, you would have had 54% in decent housing and 45% not in decent housing. Now in our submission it would have been a very material difference. It?s not just that more than half the migrant workers would have been in decent housing, it?s also that the remaining 45% would have seen that their employer was in the process of addressing their living conditions. Instead three-quarters of the migrant workforce was living in squalor and Lonmin had done nothing about it for more than a decade. In fact they?d compounded the problem by pushing 7 out of every 8 hostel residents into the informal settlements. So it very much would have made a difference is our submission"
atom bomb
In case it isn't obvious: "The Commission is satisfied that Lonmin?s failure to comply with its housing obligations „created an environment conducive to the creation of tension, labour unrest, disunity among its employees or other harmful conduct?."
Chapter 25
Starts on p543, there is a LONG list of things to be referred to the DPP in the North West
Chapter 26: Responses to questions posed in the Commission's terms of reference
Essentially a summary of the findings scattered throughout this now-colossal thread
Chapter 27: Closing Remarks
It was clear that a fear factor was present in the proceedings. Killings occurring outside the commission were interpreted as attempts to silence witnesses, and many were afraid to speak or to be identified.
The commission condemns in the strongest terms the killing of innocent mineworkers and others by strikers prior to 15 August
Equally condemns the gratuitous violence and mutilation of the lonmin security guards killed
Commission notes that the burning of vehicles on the 12th and 14th was likely premeditated, as the strikers came with incendiary materials
While not detracting at all from the criticisms of the actions of the SAPS, the taking up of arms and the use of violence by the strikers was an important contributory fact to the situation at Marikana developing as it did. It alerted the police to the type of criminal acts they were required to deal with and precipitated a police presence in addition to Public Order Policing. It was also an indication of the lengths the strikers to which were prepared to go, to enforce their demands.
Whilst there exist adequate mediation and negotiation channels to enable issues to be resolved in matters of protests, strikes and stand offs, it might be a salutary lesson, for the citizens of this country to take away from Marikana, that the taking up of arms and the resorting to violence is neither constructive nor appropriate in protecting and enforcing one?s rights.
The commission hopes that its recommendations will help the SAPS create a police force that can function within the constraints of the constitution and the law.
Finally, the commission endorses the following in the head of argument form the SAPS counsel: "South Africa should not have another Marikana. The loss of lives of the strikers, the members of the police, security personnel of Lonmin and employees of Lonmin is to be deeply regretted. The injuries sustained by some of the strikers are also regrettable. Damage to property should not follow expression of any civil disaffection. Bearing arms against a lawful authority should provoke widespread outrage. A career in the police service should not be a death warrant. Those who are found to have been culpable in relation to the criminal acts in the period 9 to 16 August 2012 in Marikana must bear the consequences of their conduct."
There are appendices, but I am only human. Good night all.